In re Benj. B. Hatch's Estate; v. Gordon
| Decision Date | 01 January 1890 |
| Citation | 18 A. 814,62 Vt. 300 |
| Parties | In re BENJ. B. HATCH'S ESTATE; ELLEN L. GORDON, APPELLANT |
| Court | Vermont Supreme Court |
JANUARY TERM, 1890
This was an appeal from the judgment of the Probate Court ordering dower and a homestead to be set out from the estate of B. B Hatch, and was tried by court at the September Term, 1888 Ross, J., presiding. Judgment of the Probate Court affirmed. Exceptions by the appellant.
The judgment is affirmed and certified to the Probate Court.
T.R Gordon and A.G. Fay, for the appellant.
It appears by the exceptions that the testator, B. B. Hatch, owned a farm situated in Jericho which he used as a homestead down to the time of his decease. The question is whether his widow is entitled to homestead and dower therein, he having made a provision for her in his will, which is as follows:
The law so carefully guards the homestead that the sole deed thereof by the husband and father is voidable for the benefit of the wife and children who have an inchoate right therein. Whiteman v. Field, 53 Vt. 554. He cannot devise it away from his widow and minor children. Meech v. Est. of Meech, 37 Vt. 414. It is exempt from attachment on his debts while he lives, except such as were in existence at the time the deed of the homestead was filed for record. Gilson v. Parkhurst, 53 Vt. 384. It is not subject to the payment of his debts after his decease, unless they were legally charged thereon in his lifetime.
In this case, by virtue of section 1898, R. L., upon the testator's decease, the homestead vested in the widow, and if there were minor children, in the widow and such children, and on request, it became the duty of the Probate Court having jurisdiction of his estate to cause the same to be set out to them by commissioners.
While a husband and father cannot by will deprive his widow and minor children of their homestead right, the provisions of his will might be so clearly expressed to be in lieu of homestead, that his widow would be compelled to choose which she would take, and by electing to take the former, renounce the latter; but as was said by Aldis, judge, in Meech v. Est. of Meech, supra,
The homestead being intended for the benefit of the widow and the children of tender age, "for the sustenance of the wife and the nurture and education of the minor children," a claim thereto when asserted by them must be met by unequivocal provisions of the will in order to bar them of their right.
In this case the testator could so easily have made the devise to his widow conditional upon her relinquishment of the homestead, or have declared it to be in lieu thereof, that it is at least doubtful whether he did not consider the fact that she would take a homestead by law and make this devise to her in addition thereto.
Dower and homestead are for the same general object and are both highly favored in the law. The former may be but the latter cannot be defeated by the husband's sole deed. The former at the decease of the husband vests in the widow; the latter, in her or the minor children or both. It was held in Dummerston v. Newfane, 37 Vt. 9, Grant v. Parham, 15 Vt. 649, and Gorham v. Daniels, 23 Vt. 600, that the widow's right of dower becomes a present vested estate on the decease of the husband which does not depend on the contingency of the dower being assigned or set out. It is consummate by the husband's death. In this respect homestead and dower stand alike.
The statute, R. L. s. 2219, provides that in certain cases the widow may be barred of dower, while there is no statutory mode of barring her and the children of the homestead. It remains to be considered in this case whether the devise was in lieu of dower--whether there was such a clear and manifest intention in the testator, evidenced by the terms of the will itself, that his widow should not have her dower and the devise in addition thereto, that she is bound to choose between them. A widow may be put to her election by a provision in the will of her husband in lieu of dower or which is inconsistent with dower, for she is not to be suffered to take under the will and also in opposition to it. 1 Bish. Law of Married Women, s. 434; 1 Jarm. Wills, 458.
By the rule of the common law a devise or bequest to a widow is presumed to be in addition to her dower unless it clearly appears that it was the intention of the testator that it should be in lieu thereof. This is upon the ground that the wife has an interest in her husband's estate of which she cannot be divested by a bequest or devise which are considered to be in the nature of gratuities; in other words, a mere gratuity cannot extinguish a legal right.
The question is not what the testator probably intended; it is not for the court to determine upon all that is contained in the will whether it is more likely that the bequest was intended to be in lieu of dower, or in addition thereto. It must be entirely inconsistent with an intention on the part of the testator that his widow should have dower in his estate.
A case can readily be conceived where a bequest or devise to a widow would be so definite and ample as to preclude the idea that her husband intended she should take the same in addition to dower. If Mr. Hatch had devised to his wife a dwelling house for a home and lands for a means of support or made any other definite provision for her, or had devised all his real estate to his children after providing for his wife's maintenance, she might have been compelled to make an election; but the devise to her is an undivided fractional part of the residue of his estate, and less than that to his son. If, after the two bequests of $ 800, he had given definite sums to his wife and children, and the estate were insufficient to allow dower and pay the bequests, which he presumably knew, there would have been ground for the argument that a claim for dower was repugnant to the devise. It appears by the appraiser's report that the estate consisted of $ 8,000 in land and $ 1,550 in personal property, and by the commissioners' report that the debts proved against the estate amounted to $ 3,465. After the first two bequests the testator devised the residue of his estate in such manner that his wife and the children by her take the same fractional parts, respectively, whether she has her homestead and dower or is denied them.
Under the Massachusetts statute if any provision is made for the widow in the will of her husband, she must, within six months after the probate of the will, make her election whether she will take such provision or be endowed of his lands, but she cannot take both unless it plainly appears by the will that the testator intended she should have both. This is the reverse of our statute and of the common law rule, and therefore the decisions in that State are not in point.
By the statute of Connecticut the provision must be in lieu of dower, but the court has held that it need not be so expressed in the will, but may be shown by clear implication thus making the statute of that State, by construction, like our own. Appellant's counsel rely on the case of Lord v. Lord, 23 Conn. 327, and Alling v. Chatfield, 42 Conn. 276. In...
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